It is common practice in the Labour Law field to dismiss employees who have been proven to have committed theft. The cornerstone of the employment relationship is one of trust. It is reasonable to state that when an employer no longer trusts an employee that, that employment relationship should be broken. Obviously, the legislation protects employees on the basis that an employer has to prove the merits of the case i.e. that theft did exist and also have to go through a proper process which is normally a disciplinary hearing.
In a particular case despite the fact that the theft was shown to have been committed and there was a proper disciplinary hearing, the Arbitrator at the Commission for Conciliation Mediation and Arbitration ruled, despite many negative circumstances, that the employee was retrospectively reinstated on the date of his dismissal.
In an interesting judgement handed down by the Supreme Court of Appeal of the Republic of South Africa, the judges accepted that a reinstatement was fair and reasonable but changed the ruling to accord the second CCMA ruling i.e. reinstatement, the final written warning valid for 6 months. Such reinstatement would take effect from the date of the award and not from the time of the dismissal. This judgement does certainly throw the “cat amongst the pigeons”. The employer was Shoprite and the employee was Mr Maake. Mr Maake was filmed on three separate occasions, consuming food that clearly belonged to Shoprite. Shoprite had an enormous shrinkage problem and had a rule against the consumption of food in certain areas. Clearly, Mr Maake had consumed the food which did not belong to him, without permission. There was no challenge to the procedure in effecting the dismissal, however, the initial Arbitrator at the CCMA said that discipline had to be progressively imposed and that Mr Maake had a clean long service record and he believed that in the totality of the circumstances that dismissal was too harsh a sanction.
It is also interesting to note that Mr Maake, the employee, at first denied that he was the person on the video clips and then admitted it. Finally in a counter application at the Labour Court Mr Maake once again denied that he was the person who featured in the video clips. The court said “it is safe to say that Mr Maake was not contrite”. This court case went through to Arbitrators, The Labour Court, The Labour Appeal Court and the Supreme Court of Appeal of the Republic of South Africa. The dismissal took place on the 2nd December 2000 and the final judgement was give on the 27th March 2009. It appears that the labour justice system failed both the employee and the employer. The court said “regrettably, as will become evident, this case has had a long and gruelling journey”. This long journey has certainly created a strange precedent as it could leave the impression that theft could under certain circumstances warrant a final written warning and not dismissal. This means that many institutions would be required to continue employing dishonest people.
We all know that employers and employees alike have a right to fair labour practice in terms of our constitution and we all understand that it is for Commissioners at the CCMA or the Bargaining Councils to determine the fairness of the dismissal, however, we need to be able to have certainty in the law and we need to ensure that the regulation of the employment relationship is consistent. These particular circumstances of the above mentioned case do appear to destroy that certainty and consistency. The caution to employers is to take into account length of service, which is the 30 years in this case and the clean record such as that in this case. It should also be mentioned that the value of the goods stolen in this particular case was negligible. Despite this uncertainty it should still be a rule of thumb that theft is equal to dismissal.
MICHAEL BAGRAIM BA. LLB.
BAGRAIMS ATTORNEYS (LABOUR LAWYERS)